Three hours after a fire broke out at Citgo’s Corpus Christi refinery on July 19, releasing dangerous chemicals, the TCEQ’s regional head emailed a colleague: “Apparently there is a fire at Citgo. I’m walking into the Harry Potter movie.”

To judge by size alone, Texas' environmental agency should be the mortal terror of polluters. The Texas Commission on Environmental Quality (TCEQ) boasts a $600 million budget, some 3,000 employees, a sprawling Austin headquarters, and 16 regional offices. In 2008, the agency conducted more than 100,000 investigations, issued more than 14,000 violation notices, and levied $16.9 million in penalties. By the numbers, Texas’ environmental agency is the second-largest in the world, after the federal Environmental Protection Agency.

Though it’s not a household name, the commission has profound influence—over the air we breathe, the water we drink, and the health of Texas’ diverse ecosystems, not to mention the state’s economy. The agency regulates dry cleaners, hazardous waste dumps, the vast coastal petrochemical complexes and uranium mines. It oversees Texas’ enforcement of federal laws such as the Clean Water Act and the Clean Air Act.

But both its critics and friends will agree on this: TCEQ is no EPA. While the federal agency is a favorite punching bag of right-wing Texas politicians like Gov. Rick Perry, you don’t hear warnings ringing out about the evils of the TCEQ. That’s because, in decision after decision, the Texas agency that’s supposed to protect the public and the environment has sided with polluters.

Perry, who appoints the three TCEQ commissioners, and the TCEQ bosses say they’ve strived to balance economic growth with protecting the environment. It doesn’t feel that way to the agency’s fierce and numerous critics.

“The problem with some of my colleagues’ balancing is they always balance it toward economic development and don’t let the environment have an equal consideration,” says Larry Soward, a former TCEQ commissioner who now works with environmental groups on strategies to improve the agency.

Interview with Audio: In his six years as a TCEQ commissioner, from 2003 to 2009, Larry Soward got a rare insider’s view of how the agency functions—and how it doesn’t. Learn why the EPA is taking away the agency's power »

Texas has always been a state where environmental concerns are elbowed aside by moneyed interests: the cattle baron, the oilman, the multinational petrochemical company with billions in assets. Under governors George W. Bush and Rick Perry, the TCEQ has become increasingly cozy with industry. (Until 2002, the agency was the Texas Natural Resources Conservation Commission, or TNRCC—”Trainwreck” to its critics.)

“It’s never been worse,” says Jim Schermbeck of the clean-air group Downwinders at Risk. “Perry makes Bush look like a Greenpeace smokestack-sitter.”

When Texas citizens meet their environmental agency, they’re often disappointed. The stories of environmental battles—told in these pages countless times—frequently follow a similar plot.

First, citizens band together to beat back (fill in the blank: a coal plant, industrial feedlot, uranium mine, or something else of your choosing). New to activism, they educate themselves on the rules, laws and politics. At some point, they probably contact an overwhelmed organization such as Public Citizen or the Sierra Club for help. They form a group with a snappy acronym, print literature, create a website, hold meetings and write their Congress member. After a time, they realize that the Texas Commission on Environmental Quality is holding the cards. A permit must be stopped or penalties assessed to deter misbehavior. Surely the commission, an impartial arbiter, will weigh the facts and side with the people.

More times than not, a bitter reality sets in: The TCEQ is not the people’s friend, but another obstacle. There’s a “well-founded perception that [the public] can’t get in the process or, even if they get in, it’s just a token effort, and it won’t make any difference,” Soward says.

In TCEQ’s internal lingo, “customers” are the companies the agency regulates. In serving its “customers,” TCEQ has allowed itself to be overrun by powerful interests, shown disregard for both science and the law, and cast aside public opinion.

There’s no more eye-opening illustration of the agency’s MO than West Texas’ new radioactive waste dump. In 2007, a team of geologists and engineers at TCEQ unanimously recommended that a license for the vast dump, near Andrews, be denied. Water contamination was a prime concern. Then-Executive Director Glenn Shankle ordered the TCEQ team to issue the license anyway. There was big money at stake. The company behind the dump, Waste Control Specialists Inc., is owned by Dallas billionaire Harold Simmons, who’s contributed $620,000 to Perry’s campaigns since 2001, according to Texans for Public Justice. Simmons stands to make billions from storing “low-level” radioactive waste in West Texas.

Records show that Shankle met regularly with a team of lobbyists, lawyers and company principals at the same time his own experts warned him of the dump’s dangers. Seeing that the fix was in, three TCEQ employees quit in protest. Commissioners hardly batted an eye. In January 2009, after a brief, technical discussion, they voted 2-0 (with Soward abstaining) to issue the license. They also denied the Sierra Club and 12 individuals in Eunice, New Mexico, the town closest to the dump, a chance to contest the license before administrative judges.

Shankle stepped down as TCEQ’s executive director in June 2008. Six months later, he went to work for Waste Control Specialists as a lobbyist, collecting between $100,000 and $150,000 for his services thus far. Commissioners and top management frequently leave the agency to work for the industries they previously regulated, a revolving door that critics say has led to TCEQ’s leaning in industry’s direction.

Since 1993, former TCEQ higher-ups—including commissioners, general counsels, and a deputy director–have earned as much as $32 million lobbying for the industries they once policed. Four of the five former executive directors became lobbyists soon after leaving their positions, with companies such as Waste Management Inc. paying agency alums hundreds of thousands of dollars to lobby as only insiders can. Read more »

Many of Texas’ veteran environmentalists long ago grew cynical about any possibility of reorienting the TCEQ toward its public “customers.” Many legislators have a level of frustration toward the agency exceeded only by their animus toward the state Department of Transportation.

Hope for reforming the TCEQ has surged in the past year, however. The chief reason: Since President Barack Obama took office, a newly invigorated (and demonized) EPA has made clear that it won’t let Texas slide. In late May, in an unprecedented move, EPA forbade the Texas agency from issuing a permit to a refinery in Corpus Christi and threatened to do the same in dozens of other instances. EPA's hardball gambit effectively ends "flexible permits," an industry-driven program that gives major refineries and chemical plants a pass on ratcheting down emissions at individual emission points. Critics charge that "flex permits" are basically unenforceable and lead to unacceptably high pollution levels.

The federal agency is also pressuring the state to overhaul other air-permitting programs it considers inadequate. They’re cracking down on TCEQ’s frequent refusals to hold public hearings—and on its fundamental failures to control major air polluters. In response, the EPA is getting plenty of blowback from Perry and his commissioners.

Soward sees neither side budging: “I think that in the days and weeks to come, we’re going to see that that confrontation is going to come to a head.”

The state-federal showdown is kicking off as TCEQ goes before the Texas Sunset Advisory Commission, a legislative body that reviews state agencies every 12 years. Critics like Soward hope to use the sunset process to press the Texas Legislature, which meets in January, to change TCEQ’s idea of who their customers really are.

With the pressure building and hope for reform rising, it’s the ideal time to step back and examine the patterns of failure at TCEQ.

SEE NO EVILSince 2005, a drilling frenzy in the Barnett Shale—an extensive geological formation with trillions of cubic feet of natural gas—has overtaken much of urban and suburban Fort Worth. It’s been a bonanza for gas producers, local government coffers, and residents receiving royalty checks. But there’s a backlash, fueled by fears of groundwater contamination, pipeline explosions, and evidence that at least some of the 14,000 wells drilled so far are leaking dangerous toxins into the air.

Last September, the tiny town of DISH—frustrated by the lack of action on TCEQ’s part—announced the results of a bombshell air-quality study it spent 10 percent of the town’s annual budget to commission from outside experts. Air samples from residential areas near gas-compressor stations contained high levels of benzene, and other carcinogens and neurotoxins—much higher than TCEQ health-based standards. Evidence in hand, DISH Mayor Calvin Tillman, a conservative who’s become the bane of North Texas gas interests, called on the industry to clean up its act or get out of town.

The fallout from the DISH study prompted TCEQ to do its own testing during three days in December. On Jan. 12, Deputy Director John Sadlier presented the much-anticipated results to the Fort Worth City Council.

“Everything you hear today will be good news,” Sadlier told the packed council meeting. The commission staff, he said, had visited 126 sites in the Fort Worth area and found no evidence of benzene or other cancer-causing chemicals. “Based on this study, the air is safe,” Sadlier told the council.

Later, Mayor Mike Moncrief, who comes from a prominent oil and gas family, pronounced himself “grateful” for the results. Since that burst of good news, Fort Worth city officials, including Moncrief, have generally resisted calls to impose more stringent rules on gas drilling. “Sadlier’s comments only emboldened the council’s belief that the air quality is okay,” wrote Don Young, a drilling reform activist in Fort Worth.

If council members had squinted, they would have seen a disclaimer stamped at the bottom of each page of Sadlier’s PowerPoint presentation: “This data is for screening purposes only and may include samples that did not meet the established quality control acceptance criteria,” the disclaimer read.

As drilling activists discovered, the state’s study was rubbish. The testing was done on cold days, when benzene tends to be inactive. The inspectors took samples only if the levels measured 140 times the Metroplex average—far above state health standards. Only eight samples were collected.

Confronted with these facts, commission PR staffers stuck with the original message. “We were trying to do that really fast,” TCEQ spokesperson Terry Clawson told the Fort Worth Weekly. “If you are going to do testing and use certified labs and have it legal quality, that takes a long time.”

TCEQ used those results to “prove” that benzene wasn’t a problem. And an internal investigation prompted by an anonymous fraud complaint revealed that upper managment, including Sadlier and Executive Director Mark Vickery, knew the study was flawed. In fact, they ordered that the eight canister samples “be analyzed using a more sensitive laboratory technique.” The results came back on Jan. 22, 10 days after Sadlier’s rosy depiction at the Fort Worth meeting. Four of the eight samples measured benzene at levels above what the state considers safe for long-term health. Still, the fraud investigation states, Sadlier was “not confident in accuracy [sic] of the results from the field” or the fresh lab findings, and ordered inspectors to return to Fort Worth for more samples.

It was a nice gesture. Too bad he didn’t tell anybody outside the agency. The report notes that at the time the investigation was concluded, on Feb. 22, “neither Fort Worth officials nor the media have been alerted.”

They still haven’t. “Where the heck are the results of the follow-up sampling they did?” asks Sharon Wilson, a drilling reform advocate who lives near Decatur. “That was never released.”

Wilma Subra, a Louisiana chemist who has conducted her own analysis of Barnett Shale emissions, says the investigation raises questions of transparency. “The public got one message, but what you’re reading me is a totally different message,” she says. “Not letting the public and media know of the exceedances is of great concern. This information is critical to the community.”

When it comes to air-testing, TCEQ frequently fails. In July 2009, an explosion and fire rocked Citgo Petroleum Corp.’s Corpus Christi refinery, severely burning one worker and sending 4,000 pounds of deadly hydrofluoric acid across Nueces Bay. Hydrofluoric acid is no joke; it’s considered one of the most dangerous substances in American refining, capable of causing severe damage to the skin, eyes, heart, lungs and bones.

The U.S. Chemical Safety Board called the Corpus accident a “significant near-miss” disaster after a six-month investigation. Communities near the refinery, long exposed to releases from nearby industrial facilities, worried that they could be exposed to a chemical cloud from the July release. TCEQ seemed oblivious to the severity of the situation. Nearly three hours after the fire started, Region 14 head Susan Clewis was settling down for a movie. “Apparently there is a fire at Citgo,” Clewis wrote in an e-mail. “I’m walking into the Harry Potter movie.” She noted that Larry Elizondo, a Citgo spokesperson and Corpus city councilman, had “refused to give” a regional TCEQ employee information on the incident.

Seven hours after the fire started, TCEQ decided to do some air monitoring. “With the media attention this event is getting, I think it would be best to conduct air monitoring,” wrote Kelly Ruble, a Region 14 employee, in an email. “The old saying ‘negative data is better than no data.’” The air monitoring equipment TCEQ used—finally—was incapable of testing for hydrofluoric acid.

In another crisis moment this March, when a gas well owned by Devon Energy Corp. exploded in rural Wise County, injuring two workers, Vickery asked Sadlier if air monitoring was needed. Sadlier responded: “I don’t believe so—the fire is out. We spoke to EPA—they contemplated sending the START unit but ended up doing nothing (which I prefer).”

TCEQ VS. THE PEOPLETom and Marion Hill’s 350-acre ranch in Leon County would be the envy of any couple looking to retire to the country. It has wildflowers in grassy fields, two spring-fed ponds stocked with bass and catfish, small creeks and towering stands of trees. The Hills have owned this land for three decades and spend most of their time in a small home near the edge of their property. Devout Christians, the couple hosts retreats and church services for youth in a small chapel. Or at least they used to.

About three years ago, the Hills say their idyllic rural life was interrupted when their neighbor, Tom Crowson, got into the chicken-growing business for poultry giant Sanderson Farms Inc. With no notice, eight 500-foot barns went up 1,000 feet from their home.These are not the family farms of yore. Each barn holds 27,000 chickens, broilers pumped full of antibiotics and arsenic-laced feed to make them grow from chicks to full-grown in 63 days. About 1 million chickens are raised next door to the Hills, at Triple C Farms, every year.

Known in the industry as concentrated animal feeding operations, growers for Sanderson Farms have built almost 400 barns in a four-county region east of Waco since 2007. That’s about 50 million chickens every year—and they produce a tremendous amount of waste and manure, somewhere in the neighborhood of half a billion pounds each year, most of which ends up spread on local fields as fertilizer.

Residents of small towns like Mexia, Jewett, and Marquez describe the influx of feeding operations as an invasion, pitting rural residents against big agribusiness, with small-time growers caught in the middle. “It kinda reminds me of the range wars we used to have,” Tom Hill says.

The Hills and their neighbors worry about the effect all that waste is having on the air, water, and land. Ann Hill keeps a scrapbook illustrating the problems—photographs of chunks of partially ground-up chickens spread on nearby fields, rust-colored water in their ponds they say is runoff from the feeding operation next door, and odor logs documenting the stench.

“You put 25,000 chickens in a 20,000-square-foot building for 63 days, and, yeah, they’re gonna stink,” says David Deffner, until recently a doctor in nearby Mexia, one of several people who have given up and moved away.

“To put it bluntly: it smells like chickenshit,” says Bob Crider, a retired high-school science teacher who lives near Mexia. The intensity varies, he says, from day to day and even minute to minute. It’s worst as the sun goes down and winds recede. Sometimes it’s a musty smell; others, when the chickens are near the end of their growing cycle, it’s horrific.

“I have what I call my stink level,” says Crider. “When it gets up around 8 or 9, it will almost make you wretch.” Some people in the area have taken to wearing dust masks while outside. Accustomed to working outdoors, many have become reacquainted with the insides of their homes. They’ve also become acquainted with TCEQ—and are less than impressed.

For one thing, Texas law makes it extremely difficult for the public to file a nuisance suit once a concentrated feeding operation has been up and running for a year. Most dry-litter poultry operations are required to develop a water quality management plan, but the documents are kept secret, making it difficult for people to know whether growers are following the rules. “How do you know someone is violating a plan you can’t see?” asks Eric Allmon, an Austin environmental attorney and concentrated feeding operation expert.That means feeding operation neighbors must rely on state inspectors and their noses to enforce nuisance odor laws.

Part of the problem is that the wind is mercurial. Inspectors have 18 hours to respond—long enough for odor to dissipate or shift somewhere else. But the numbers speak volumes: Between 2006 and 2009, the number of feeding operation complaints filed with TCEQ Region 9’s office in Waco soared from 12 to 169. Since September, there have been 168, with five months yet to go in the fiscal year.Only two enforcement notices have been issued in the past two years. Neither has resulted in a penalty.

That is the fundamental problem in both feeding operations and the TCEQ: There are no real consequences to business as usual.“If you boil it all down, they [TCEQ] shuffle paper more than anything else,” says Crider, “because there’s no real penalties.”

Sometimes the public is shut out of the process altogether. In April 2009, the commissioners voted 2-1 to renew a permit for Texas Industries Inc.’s cement plant near Midlothian. The kiln, which burns hazardous waste for fuel, is the largest source of industrial pollution in the smog-choked Metroplex. Clean-air advocates had been agitating for two decades to get the plant to install additional pollution controls. Its permit renewal, which only comes around every 10 years, seemed like the perfect opportunity to push for changes.

Almost 200 citizens asked the TCEQ to grant a public hearing, seemingly an uncontroversial request. Commissioners voted 3-0 to deny a hearing. State law, they agreed, prevented them from doing so in cases where a company isn’t asking to pollute more than currently allowed. Still, then-Commissioner Soward, frequently the odd man out in controversial decisions, argued TCEQ should grant a hearing under its own authority. The other two commissioners, Bryan Shaw and Buddy Garcia, disagreed, hiding behind a parapet of legalisms. Said Shaw: “I think we owe it to the citizens and to our requirement to try to maintain a strong economy in this state, in concert with protecting the environment, that we look at more holistically, not just what permits [are] before us, but look at the whole of the emission sources we have in an area and develop strategies that help us to attain those environmental standards and do it in a way that citizens of this state can still remain productive and employed.”

Clear as mud.

SERVE THE CUSTOMEROccasionally a TCEQ employee will part the curtain and let the world see how polluters influence the agency. That’s what happened during an administrative hearing earlier this year over a giant proposed petroleum coke power plant in Corpus Christi.

In the past four years, a wave of coal-fired power plants has descended on Texas, with the potential to worsen urban air quality, throttle national efforts to tamp down greenhouse gasses, add to mercury contamination in rivers and lakes, and suck up limited water resources in already-strained parts of the state. Despite a national backlash against coal, TCEQ has approved seven coal plants so far, more than any other state, with six more pending. The commissioners appear to be following the lead of Gov. Perry, who declared in 2006 that critics of coal “want to return us to the era of horse and buggy—except they would probably complain about the methane gas from horse manure, too.”

One of the most contentious fights has erupted over Las Brisas, an exceptionally dirty pet-coke (a fuel similar to coal) plant that Chase Power Co. wants to build on the Corpus Christi Ship Channel. The anti-Las Brisas forces, including regional medical groups, scored a major victory in March when two administrative law judges ruled that TCEQ’s draft permit for the plant was so flawed that it should either be denied or sent back for further review. The two judges wrote in their decision that the company had modeled its air pollution in a “reckless manner,” in part by “artificially lowering” expected impacts on Corpus’ air quality. More illuminating was the revelation during the hearing that TCEQ Executive Director Vickery had ordered his engineers to stop trying to negotiate stricter pollution limits with Las Brisas and expedite the permit.

“I understand that Las Brisas talked to Mark Vickery about the importance of getting the permit out, and Mark made some commitments that we would try to get it out by [New Years’ Eve 2008],” permit engineer Randy Hamilton said in the hearing transcript. Levin asked: “And so does Mr. Vickery usually get involved at this level in permits you’re working on?”

Hamilton answered: “It’s happened more than once.”

The transcript records laughter. Hamilton was unsatisfied with the pollution controls Las Brisas was proposing for nitrogen oxides, a key ingredient in ozone, or smog, formation. Corpus Christi is already in “near non-attainment” of federal ozone standards, and the Las Brisas plant threatens to send it over the limit.

Environmental attorney Ilan Levin says he thinks Las Brisas was jittery over the possibility of greenhouse gas legislation in the Congress at that time and wanted to get a permit in under the wire.

Experts during the hearing disagreed about whether the specific emission controls were practical, but the upshot was clear: A powerful interest wanted its permit, and TCEQ delivered.

That’s long been the pattern for Bush’s and Perry’s TCEQ. But the business-friendly environmental agency might emerge from its brushes with the EPA and the sunset review looking considerably different.

Last May, Texas environmentalists met with newly appointed EPA Administrator Lisa Jackson. They told her that little would change unless the feds forced the state to reform. Neil Carman, a clean-air expert with the Lone Star Chapter of the Sierra Club and a former state regulator, says they told Jackson that Texas was “under siege” and needed real environmental enforcement. “She got the message,” Carman says. “She said, ‘This is like the Battle of the Alamo.’”

Six months later, Jackson hired Al Armendariz, a professor of engineering at Southern Methodist University and a fierce critic of TCEQ, to lead the regional EPA office, which oversees five states, including Texas. Armendariz is a slight, bespectacled El Paso native and an unabashed environmentalist. His ascension ruffled the TCEQ commissioners. TCEQ Chairman Bryan Shaw, a poultry science professor at Texas A&M, offered a rather backhanded greeting: “While he has a long history as an environmental activist, I hope Dr. Armendariz recognizes that this position is too important to be used as a podium for environmental activism.”

They're apparently still miffed at Armendariz.

"Dr. Al is here," read the subject line of a March email sent by Curtis Seaton, one of commissioner Carlos Rubinstein's assistants. "What does he need to hear from tx (aside from wine is good here)?"

Zak Covar, a Perry adviser turned TCEQ deputy executive director, responded: "A focus on science, common sense and the law would be helpful. Keep leading blindly and we see him and [EPA Administrator] lisa [Jackson] in court."

Even in public, TCEQ heads are bristling at the criticism they’ve been taking.

“From what you read or what you hear, it would almost appear we have little or no interest in taking care of the environment, protecting Texans, minimizing impact on the environment,” TCEQ Chairman Buddy Garcia said last September. “It’s very frustrating.” Garcia said Texas should actually be viewed as a “model for the country.”

Ironically, Garcia was speaking at a conference organized—by the TCEQ and two other state agencies—to build opposition to congressional action on climate change.

Garcia and his colleagues frequently cite gains in urban air quality over the past decade or so. They usually fail to mention that the reductions are the result of federal mandates, or that local elected officials in the Metroplex and Houston have had more aggressive smog-cutting ideas repeatedly shot down by the TCEQ.

At that same anti-fed summit, Gov. Perry ripped Washington for “intrud[ing] on individual rights and freedoms.” Praising Texas’ “consistent” regulatory environment, he said: “We have shunned sweeping mandates and draconian regulation and embraced innovation and incentives to bring about positive change.”

The commissioners have followed Perry’s lead in bashing federal environmental initiatives. Stricter smog standards? Too onerous. Caps on greenhouse gasses? Destruction of the Texas economy. Sophisticated modeling for new coal-fired power plants? Too expensive.

The TCEQ? Too business-friendly, maybe, even for Texas.

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Tags: State Agency Environment

Forrest Wilder

Forrest Wilder, a native of Wimberley, Texas, joined the Observer as a staff writer in April 2005. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest graduated from the University of Texas at Austin in December 2003 with a degree in Anthropology.

The battle between Texas pollution regulators and the Environmental Protection Agency grows more contentious and complex by the day. Gov. Rick Perry accused the EPA on Wednesday of "seek[ing] to destroy Texas’s successful clean air program and threaten tens of thousands of good Texas jobs in the process." Environmentalists fired back, in their own news conference, threatening to sue the EPA if the agency doesn't make the state shape up.

The back-and-forth follows the EPA's announcement last week that it will strip the state of permitting authority for a huge refinery in East Corpus Christi. The Texas Commission on Environmental Quality, the EPA said, was doing a shoddy job — and the agency threatened to take more plants away from TCEQ jurisdiction unless it changes its permitting system.

So does all the hubbub mean that Texas' air is dangerous to breathe? Mostly no. But exactly how safe it is and exactly who gets the credit are open questions.

In general, even the EPA acknowledges, the air above Texas cities is getting better. "Progress has been made over the years," says Dave Bary, a spokesman for the EPA's Region 6, the five-state area that includes Texas. Only Dallas-Fort Worth, Houston-Galveston and Beaumont-Port Arthur are "non-attainment" areas for ozone, which means that they do not meet federal standards developed under the Clean Air Act. The EPA forces improvements in city air quality by threatening to withhold federal transportation money, but it has never carried out this threat.

The governor's office trumpets the improvements. "The air Texans breathe today is significantly cleaner than it was in 2000," it said in a news release Wednesday. Between 2000 and 2008, the release said, Texans have cut ozone by 22 percent and nitrogen oxide by 27 percent — more than the national average.

Things aren't quite so simple, environmentalists say. First, they argue, credit for improvement belongs to the EPA, not Texas. "It was the feds who came in and said, we're going to cut off transportation funding" unless things improve, says Tom "Smitty" Smith, the state director of the environmental and consumer advocacy group Public Citizen. Federal requirements for cleaner cars and trucks have also been crucial.

Second, environmentalists say that the EPA could still be doing more to force improvements in Texas. On Wednesday, the Sierra Club and Earthjustice sent out a notice of intent to sue the EPA unless it enforced ozone standards in Texas more strictly. Enforcement has been slowed, they said, by foot-dragging by the Perry governor's office — as well as lax regulation during the eight years that George W. Bush was in the White House. The EPA plans to issue new ozone standards by the end of August, and when it does, more areas of the state — including Austin, San Antonio and northeast Texas — will be designated "non-attainment," according to Neil Carman, the clean air program director for the Sierra Club's Texas chapter.

Los Angeles, another badly polluted city, has improved faster than Texas cities, says Smith of Public Citizen. In addition, according to Bary of the EPA, only one non-Texas city in his five-state region currently fails to meet EPA standards: Baton Rouge.

In addition to broad battles over urban air, environmentalists say problems persist with localized pollution hotspots. Texas has the biggest industrial base in the country, and concerns center on the land and water near big plants such as refineries, chemical factories and cement kilns.

It is on these individual plants that the original battle — the one set off last week by the Corpus Christi refinery announcement — hinges. The TCEQ issues vast numbers of permits every year, and only 120 are flexible permits, the commission says. But the flexible permits are granted to some of the biggest plants, including the Corpus Christi refinery. Environmentalists say these "flexible" permitting arrangements for big plants are an outrage, and the EPA seems to agree.

So what are flexible permits? In essence, they put a cap on the overall emissions of a facility. The plant must meet the cap but can choose the most expeditious manner. Texas has had flexible permitting in place since the mid-1990s (environmentalists have been fighting the system ever since). The EPA's permitting procedures are more precise, specifying limits for the units within each facility.

The flexible permits create three problems, says Ilan Levin, the Texas program director for the Environmental Integrity Project, a nonprofit that advocates for better enforcement of environmental laws. First, TCEQ sets the overall emissions cap too high — allowing higher total pollution levels than what EPA-recommended caps on individual units within the facility would permit. "Those caps don't really do anything; they don't mean anything," Levin says. Second, they may result in pollutants that are too concentrated in one area of the plant — harming a school, waterway or neighborhood nearby. Third, the flexible permitting scheme means that emissions from units within the plant are not monitored and reported properly.

"There's no other state out there that has anything like Texas's flexible permit program," Levin says. "These flex permits do nothing. They're worthless."

The TCEQ, not surprisingly, "strongly disagrees that Texas air permits violate the Clean Air Act," as the agency's chairman, Bryan Shaw, said in a statement last week. Shaw also said that the environmentalists' criticism of the flexible permitting scheme are "all incorrect." To ensure no particular unit of the plant has dangerous emissions, the TCEQ does “worst-case modeling," he said. And plants must also provide emissions reports from individual units within the plant "upon request."

More broadly, Perry and industry representatives fiercely argue that revoking the flexible permitting scheme will harm the big plants by depriving them of, well, flexibility. In other words, the more rigid permitting scheme would be cumbersome and expensive. The EPA is far too obsessed with process and not enough with results, TCEQ says.

Bary emphasizes that the Corpus Christi refinery issue — and the possibility of the EPA taking over permitting for more plants — should be considered separately from the larger ozone issues facing Texas cities. Carman, for his part, offers an analogy: Decades ago, cars spewed filth into the atmosphere; now they are fairly clean. Why can't industrial plants — some of them built decades ago — also clean up at a similar rate?

"I have been waiting for 15 years for this to hit the fan," Carman says. "It's a huge mess."

by Evan Smith, The Texas Tribune. And please link back to our home page, texastribune.org, in that credit line.

Friday, September 24, 2010

Texas OGAP sent a letter to Mark Vickery today. Another letter... There is a blog post on EARTHblog that explains everything.

Eight months later, EARTHWORKS' Texas Oil & Gas Accountability Project is going to hold a public meeting to review how those new policies are doing. But TCEQ doesn't want to participate.So today EARTHWORKS's Texas Oil & Gas Accountability Project sent a letter to Mark Vickery, the executive director of TCEQ. It states in part:

The Texas Oil & Gas Accountability Project is troubled that you do not intend to attend the upcoming public meeting in DISH to address the persistent problems with TCEQ's response to odor complaints and health concerns of residents impacted by natural gas drilling and production in the Barnett Shale region.

click HERE to read the rest.

98% of the time, when you call in with an odor complaint, TCEQ finds no violation, even when 40% of the time you tell them the odors are making you sick with ailments ranging from headaches, vomiting and burning eyes to heart palpitations, dizziness and breathing difficulties.

At Texas OGAP, we don't think that's good enough! In fact, we think that stinks! We think the TCEQ 12-hour odor response is broken and we want them to fix it so it is more protective of public health.

That is why we are hosting a Help Fix the TCEQ's Stinky 12-hour Odor Response System public meeting where you will get to speak for 3 minutes about your experience with their response and give your suggestions for how to make it work better.

Where: DISH, Texas Town Hall5413 Tim Donald RoadDISH, Texas 76247 MAP

When: October 13, 2010, 7:00 PM to 9:00 PM

Who:TCEQ - they said no but we think they might change their mind.Wilma Subra - ConfirmedEPA - Probable

Waste Control Specialists Canisters of radiaoctive waste awaiting burial at WCS site In a perfect illustration of its priorities, the Texas Commission on Environmental Quality has agreed to let Waste Control Specialists keep radioactive waste that the company imported, without authorization, from Studsvik, Inc., a Tennessee waste processor.

Since 2008, the state environmental agency told Waste Control, a company owned by Dallas bazillionaire and GOP financier Harold Simmons, that it didn’t have permission to bring in and store canisters of Class B and C waste – the hottest of so-called low-level radioactive waste – at the company’s Andrews, Texas site. Nonetheless, Waste Control informed TCEQ in May of last year that it was going to do so anyway. The goal, as the company readily admitted, was to have the waste on-site in preparation for burial at their dump. It’s part of a larger strategy of making Andrews a national radioactive waste dump.

So there the waste sat for over a year while TCEQ figured out what to do. In April, Waste Control asked for a waiver of their license’s one-year limit on radioactive waste storage. The company argued in a letter (pdf) that the Studsvik waste could be placed in “interim storage” (i.e. stored indefinitely). TCEQ denied the request. In a June letter (pdf), TCEQ wrote:

The Studsvik waste does not meet the criteria of interim storage since it does not meet all waste acceptance criteria for a LLRW [low-level radioactive waste] facility. You claim that it meets the acceptance criteria of South Carolina; however, the Studsvik waste is excluded from acceptance at the South Carolina disposal facility. The recent WCS claims of interim storage status of the Studsvik waste is a new definition that is inconsistent with the terms of interim storage provided by both the regulatory agency and WCS itself in correspondence and submissions that are tie-downs for License R04971.

{bolding mine}

That seems pretty clear, right?

Well, last month, rather than fine the company or order them to return the waste, TCEQ issued a “compliance agreement” – a favorite tool of the punishment-averse agency. The agreement notes that Waste Control violated its license by storing the waste for longer than a year and allowing large cracks to form in the canisters’ asphalt pad site. But it allows Waste Control to store the Studsvik waste for three years so long as they meet certain criteria, such as submitting engineering and inspection plans for the pad site and securing a “take-back” agreement with Studsvik.

I don’t know what has changed since June, when TCEQ told Waste Control that the Studsvik waste couldn’t be put in interim storage. I don’t know what has changed since May 2009 when TCEQ told Waste Control that it didn’t have permission to import the Studsvik waste. And I don’t know what’s changed since 2008 when TCEQ and Waste Control agreed that major amendments to the storage and processing license were needed before the waste could be brought in and stored.

What I do know is that money talks. And Waste Control owner Harold Simmons has done plenty of talking, spending millions and millions on lobbyists and political contributions in Texas. Simmons and his company PAC have generously donated almost $4.2 million Texas politicians and PACs since 2001, according to Texans for Public Justice. To Gov. Perry, who appoints the TCEQ commissioners, Simmons has donated $620,000 since 2002. Is that why TCEQ never says “no” to this company? We report, you decide.

All things considered, this Studsvik deal is small beer compared to other goings-on at the Andrews dump. TCEQ has issued Waste Control two licenses to dispose of 2.3 million cubic feet of nuclear waste from Texas and Vermont; 26 million cubic feet of federal radioactive waste; and 32 million cubic feet of radioactive “byproduct material” (uranium mine tailings and some federal uranium enrichment spoils). For those of y'all who aren't so good at math, that's a little over 60 million cubic feet, or more than half of Cowboys Stadium.

Waste Control also plans to ask the Texas Low-Level Radioactive Waste Disposal Commission (an under-funded, understaffed entity stacked with Perry appointees) for permission to import and bury nuclear waste from the 36 states currently lacking a disposal option.

Waste Control is also the top pick to store up to 10,000 tons of elemental mercury from the Department of Energy and are bidding to accept thousands of canisters of depleted uranium. Meanwhile, trains bearing 400,000 tons of PCB-laden mud from the Hudson River are making their way to Andrews for burial at Waste Control’s dump. No matter that former agency geologists and engineers have repeatedly warned that the dump sits in the immediate proximity of two water tables. What Simmons wants, Simmons gets.

BP: 500,000 pounds of emissions released By T.J. Aulds The Daily NewsPublished June 5, 2010

TEXAS CITY — At BP’s Texas City refinery, more than 400 pounds a day of benzene — 40 times the state reportable levels — was released during a 40-day period while a subunit of the refinery’s ultracracker unit was offline, according to a company filing with the state’s environmental agency Friday.

In all, BP officials said more than 500,000 pounds of pollutants and nonpollutants were released while the company increased flaring as they tried to repair a compressor on the faulty unit.

Refinery spokesman Michael Marr said in its follow up reporting with the Texas Commission on Environmental Quality, BP estimated 36,000 pounds of nitrogen oxides and 17,000 pounds of benzene were released in the 40 days. State law requires 10 pounds or more of benzene and 200 pounds or more of nitrogen oxide during a 24-hour period must be reported through the commission’s air emissions database.

Benzene is a carcinogen naturally found in oil that has been linked to some forms of cancer, according to U.S. Health and Human Services records. Nitrogen oxides react to sunlight to form ozone and can damage lung tissue and cause respiratory problems.

However, neither of the levels of the emissions reached levels that required self-reporting to the U.S. Environmental Protection Agency, Marr said. The EPA requires any nitrogen oxides release of more than 1,000 pounds a day be reported, while the federal agency does not require reports of benzene emissions.

According to BP’s filing with the TCEQ, the ultracracker’s hydrogen compressor went offline April 6 and was not repaired or restarted until May 16.

Because of the malfunction, the subunit was shut down, and materials were purged and gasses were rerouted to a flare, according to the company’s filing.

The ultracracker, which remained operable, can process 65,000 barrels of oil per day and mostly produces high-octane blending components for gasoline. The ultracracker also can produce ethane, propane, butane, pentane, hexane and distillate.

The bulk of the emissions during that time included an estimated 189,000 pounds of carbon monoxide and 61,000 pounds of propane, according to the company’s report to the TCEQ.

“During this time period, the site’s fenceline monitoring did not indicate any excess readings,” Marr said. “Also of note, the site performed modeling of the emissions using TCEQ-approved modeling methods, and that modeling did not indicate an exceedance of regulatory exposure limits to workers or the community at any time during the flaring.”

TCEQ spokeswoman Andrea Morrow said the filing starts a process that includes a review by the agency that could end up before the commission’s enforcement division. She said depending on why and what caused the emissions, the agency could take enforcement action.

But without knowing the specifics of the BP emissions, she could not comment on what action the agency could or would take.

She did caution the figures BP included in its report likely were estimates that will be higher than what actually was released.

She said companies that underreport emissions face penalties. So the companies often will “shoot high,” Morrow said.

According to BP’s TCEQ filing, all of the figures were estimates.

+++

Benzene Emissions

According to a 2008 report by the Environmental Integrity Project, BP’s Texas City refinery was among four refineries in the nation that had the largest increases in benzene emissions even as overall benzene emissions among U.S. refiners decreased by more than 18 percent between 2000 and 2008.

The environmental group claims refiners actually underreport how much of the carcinogen is released because of inadequate EPA standards.

However, according to a report to the Texas City-La Marque Community Advisory Council by the Galveston County Health District’s director of Environmental Health last summer, benzene emissions in Texas City decreased by 74 percent between 1993 and 2008. That report does not single out BP nor attribute how much each of the city’s chemical plants or refineries reduced benzene emissions.

Wednesday, September 15, 2010

One tool created by Texas to assist industry by watering down the Clean Air Act is the flexible permit. In 1995, the Legislature directly revised and weakened its State Implementa­tion Plan, sidestepping the state's own process – without Enivironmental Protection Agency approval. Among other changes, those revisions altered new source review air permitting and banking and trading rules. The new SIP also authorized a flexible permit system for more than 1,000 grandfathered industrial plants. Between 1995 and 2009, according to Neil Carman, Clean Air Program director for the Lone Star Chapter of the Sierra Club, the Texas Commission on Environmental Quality issued more than 150 flexible air permits to more than 140 major plants. But in June, the EPA is expected to disallow all Texas flexible permits because they allow polluters to break Clean Air Act rules.

Both environmental groups and industry are unhappy about the fact that the state rules have remained in a gray area for many years, out of compliance with federal law. In August 2008, the Business Coalition for Clean Air Appeal Group, the Texas Association of Busi­ness, and the Texas Oil and Gas Association sued the EPA in federal court to compel it to finally decide whether all of the state's 1995 SIP revisions were legal. The Environmental Integrity Project filed related citizen petitions in January and August 2009. The EPA responded and reached an agreement in July 2009 on a schedule of final decisions on the Texas air permitting program.

What do Texas air permitting practices allow that the EPA is expected to disapprove? Under federal law, when older plants grandfathered from initial Clean Air Act compliance are updated or changed in any way, the tougher emission rules kick in. Any modification to a plant should require a new permit. That, in turn, triggers the requirement to upgrade to modern standards – what the EPA calls the "best available control technology." But Texas allows industry to avoid the permits and the upgrades, as long as a facility stays under its overall "cap" – as self-reported and never independently monitored. It also allows industry to avoid giving public notice of changes, which federal law requires.

The EPA is now reviewing a thick stack of complaints against TCEQ that piled up during the Bush administration. All industrial air-quality monitoring, measuring, reporting, and noticing is so lax in Texas that nobody fully knows what's being emitted by permitted plants – even the industries themselves

The Texas Commission on Environmental Quality is currently under Sunset review, a legislative process that critiques and could even abolish the agency. Public comment will be invited in mid-December. The Alliance for a Clean Texas (a coalition of Texas environmental and public interest groups) is organizing a campaign to demand changes at TCEQ, as part of the Sunset review process. According to the organization's website, "In the coming year, Texans have a once-in-a-decade opportunity to improve the way our state environmental agency carries out its mission to protect our health and natural resources. ... The sunset review process offers all concerned Texans a chance to advocate for much-needed reforms at TCEQ."

The commission's report on an agency must include a recommendation to abolish or continue the agency; it may also recommend changes. If the Legislature continues the agency, it should correct problems identified during the Sunset review. For more info on ACT's grassroots campaign, see www.acttexas.org.

The city of Denton used this Texas Health Code to justify it's new drilling ordinances.

§ 122.005. POWERS OF TYPE A GENERAL-LAW MUNICIPALITY. (a) The governing body of a Type A general-law municipality may take any action necessary or expedient to promote health or suppress disease, including actions to:(1) prevent the introduction of a communicable disease into the municipality, including stopping, detaining, and examining a person coming from a place that is infected or believed to be infected with a communicable disease; (2) establish, maintain, and regulate hospitals in the municipality or in any area within five miles of the municipal limits; or(3) abate any nuisance that is or may become injurious to the public health.(b) The governing body of a Type A general-law municipality may adopt rules:(1) necessary or expedient to promote health or suppress disease; or (2) to prevent the introduction of a communicable disease into the municipality, including quarantine rules, and may enforce those rules in the municipality and in any area within 10 miles of the municipality.(c) The governing body of a Type A general-law municipality may fine a person who fails or refuses to observe the orders and rules of the health authority.

Monday, September 13, 2010

Acidizing is the second of the three methods discovered to promote well stimulation. Acidizing is injecting an acid under pressure into a formation to enlarge the pore spaces and passages in order to increase productivity.

Background

Acidizing was first performed in 1932 by the Pure Oil Company in cooperation with Dow Chemical Company. By 1934 acidizing was commonly used in addition to shooting, and these were the only two known methods for well stimulation until fracturing was invented in 1948. Today it is known that certain kinds of formations respond better to acidizing than the other methods. Acidizing is still widely used to:

· Dissolve rocks in the productive formations

· Open new channels to the wellbore

· Reduce formation resistance to the wellbore

Description of the Process

In the acidizing process, acids such as hydrochloric acid, formic acid, and acetic acid are pumped into the wellbore under pressure so as to allow the acid to react chemically with the rock in order to enlarge existing channels or to create new ones. There are two basic types of acidizing treatment:

Low pressure acidizing to avoid fracturing the formation and allow the acid to work through the natural pores of the rocks

High-pressure acidizing, also called “acid fracturing”, where sufficient volume and pressure is maintained in order to keep the fractures open while the acid is injected

The acid used for the treatment must create products of the reaction that are soluble and which can be easily removed from the well. Since large volumes of the acid are used, it must be relatively inexpensive and safe to handle. Additives are used with the acids for several purposes, but the most important purpose is to inhibit the acid from attacking the steel tubing or casing in the well. There are several types of additives used:

Inhibitors are used to prevent the acid from working on steel for several hours

Surfactants are mixed in small amounts with the acid to make it easier to pump the acid into the formation and prevent the acid and oil from forming emulsions

Sequestering agents are added to control the precipitation of iron deposits from spent acid solutions and from scales of iron sulfide, iron oxide, and iron carbonates found in well tubing and casing

Suspending agents are used to suspend the fine clay and silt particles that may remain in the well

The service of acidizing the formation of a well begins with the perforating of the well casing with an acid jet gun, or, if the casing is already perforated, the service begins with the setting up of all the equipment necessary for servicing the well and ends with the removal of the equipment required to perform the acidizing service.

Non-Taxable Services

The following are services which are not subject to the oil and gas well servicing tax as not all acidizing treatments are considered to be acidizing of the formation:

Acidizing to recover fish or stuck pipe. During drilling operations it is not uncommon for the drill pipe to become stuck in the hole. This may be caused by sloughing of the material around the borehole, insufficient mud circulation to remove the bit cuttings from the hole, or numerous other reasons. Through the proper use of acids, it is possible sometimes to dissolve the material causing the sticking and thereby release the drill pipe so that the drilling may continue. Similarly, the casing sometimes becomes stuck while being lowered in the borehole due to the same conditions causing the drill pipe to stick. Acids may be used to dissolve the material so that the running of the casing may continue.

When tools or other objects are dropped or “lost” in the borehole, acids may be used as an aid to fishing tools. In this case, dissolving of the formation or other substances may allow the fishing tools to function as desired. The goal is to recover the lost objects so that drilling may continue.

Acidizing to clean screens. In some wells it is necessary to use screens or strainers or pipes positioned in the well to prevent encroachment of undesirable substances. Acid is frequently used to clean these screens or strainers of drill mud, carbonate scales, sulfate scales, iron sulfide, or other substances which have plugged the screens or strainers.

Acidizing to dissolve mud sheaths. A function of drilling mud used in drilling or rework operations is the forming of a mud cake or sheath on the wall of the hole in order to prevent sloughing of the formations into the borehole. While this is desired during the course of drilling operations, this mud cake must be removed from the productive formation when completing the well so that the natural fluid flow in the formation will not be restricted. Acid mixtures, commonly called mud acid, are used to dissolve and remove this mud cake. The objective of such acid mixtures is to dissolve the mud sheath and not the productive formation.

Acidizing soluble metals. Pipe or special tools made from certain metals are soluble in acids. Should their removal from the wellbore be desired, it is accomplished through the use of acids.

Acidizing to dissolve paraffin deposits in the tubing. This acidizing is not for the purpose of acidizing the formation nor is it performed during the drilling, completion, and/or reworking or reconditioning of the well.

FRACTURING

Introduction

Fracturing is one of the methods of well stimulation in addition to shooting and acidizing. In fracturing, commonly called a “frac job,” sand and a fluid mix are forced into the formation to open cracks. When the fluid is removed, the sand particles remain in the cracks in order to keep them propped open so that the liquid hydrocarbons can flow into the wellbore.

Background

Fracturing was the last of the three known methods of well stimulation to be introduced. It was first used in the Hugoton gas field in western Kansas in 1948, and has since gained wide acceptance in the oil and gas industry. It is commonly called “hydraulic fracturing’ due to the use of hydraulic equipment to create the extremely high pressures needed to crack open or break the tight formations. Today, hydraulic fracturing is used to accomplish four basic jobs:

Overcome wellbore damage

Create deep penetrating reservoir fractures in order to improve the productivity of a flowing well

Aid in secondary recovery operations in order to enhance the productivity of a well

Assist in the injection or disposal of brine and industrial waste material

WHAT COULD THEY POSSIBLY MEAN BY INDUSTRIAL WASTE MATERIAL? WE ALL KNOW THEY JUST USE WATER AND SAND FOR FRACTURING!

Description of the Process

The fracturing process consists of the application of hydraulic pressure against the formation by pumping fluid (gel) laden with some type of particle into the well. The formation is actually split by the pressure of the fluid. The amount of pressure, sometimes as high as 10,000 pounds per square inch (psi), and the equipment necessary to furnish the pressure vary according to the requirements of each situation. The fluid pumped or injected into the well contains sand or other solids (glass beads, walnut shells, etc.) called “propping agents” which are deposited into the cracks and fissures created by the pressure. The sand or other solids injected into the well act as props after the pressure is released. The most common fracturing fluid is diesel fuel, but refined oil, crude oil, salt water, acids, and emulsifiers are some other fluids used.

Some examples of ways in which hydraulic fracturing can be applied to a producing well are:

With a single packer in the hole

Pulling the tubing so that the fluid can be pumped down the open casing. This allows much more fluid to be pumped down the hold without exceeding the rated maximum pressure of the wellhead fittings.

Pulling the tubing and using a “straddle packer.” This makes it possible to isolate one zone from another and selectively fracture several zones by simply changing the position of the packer

Where perforated casing is involved, sealing balls may be injected into the fluid. The high velocity of the fluid will transport the balls to perforations which are “taking fluids,” seal them off, and direct the hydraulic fluid to other perforations in order to create multiple zones. If the perforated zone is to be abandoned, various-sized balls are used to plug the perforations. When the injection is stopped, all remaining excess balls will fall to the bottom of the well.

The service of fracturing a well begins with the setting up of all the equipment required to perform the fracturing service, and it ends with the removal of that equipment.

Non-Taxable Services

The only fracturing service not subject to the oil and gas well servicing tax is:

· Fracturing of injection or disposal wells

Thank goodness they don't tax injection wells!

DON'T BE TO RELIEVED WHEN THE DRILLING AND FRACTURING IS OVER BECAUSE THEY CAN DO IT TIME AND TIME AGAIN!

YOU KNOW WHAT YOU DON'T SEE IN THIS REPORT IS THE WORD SAFELY USED ONE TIME.

"These PBR proposals are just a part of what the TCEQ is doing to ensure safe air in the Barnett Shale," said TCEQ Commissioner Carlos Rubinstein. "Another important step is installing new, state-of-the-art, long-term air quality monitors in the area. Long-term monitors are the gold standard when it comes to scientific determination of potential emission impacts. We have installed two new monitors, and have plans for three more. So far these new monitors are showing very low levels of benzene and other chemicals in ambient air."

As an adjunct to these rules, the TCEQ recently completed phase one of its special inventory to determine the location, number, and type of emissions sources located at upstream and midstream oil and gas operations within the Barnett Shale formation. The TCEQ has received special inventory data from companies that account for more than 99 percent of the 2009 production in the Barnett Shale formation.

Phase two of the special inventory is undergoing final tweaks and will begin this summer. It will require data on actual emissions; emissions sources; proximity to nearest off-site receptor; existing authorizations, and other information.

The two new monitors, in DISH and Eagle Mountain Lake area, join existing monitors in Fort Worth and Dallas. A new monitor is being installed in Flower Mound, and locations are being determined for a monitor in Tarrant County and an additional location in the Barnett Shale. Hourly results from these monitors can be found at the TCEQ Barnett Shale website, as well as information to assist in interpreting the monitoring data.

The TCEQ’s regional office in Fort Worth has added seven new air inspectors to respond to air monitoring complaints quickly. In most cases, responses to complaints are handled within a few hours of receiving the complaint. Using the GasFind IR cameras and/or hand-held volatile organic compound samplers, about 550 sites have been surveyed since Aug. 1, 2009. More than 275 canister samples, as well as mobile Real-Time Automated Gas Chromatograph samples, have been collected. Only two samples have been found above short-term levels of concern, and those facilities were quickly repaired. Further sampling at those sites showed very low levels of benzene emissions.

Of course Benzene levels are reported as safe because the TCEQ has raised the short term ESL by 136% and the long term ESL by 50% from 2008 to 2010.

www.tceq.state.tx.us/assets/public/comm.../TCEQ-EPA-and-Ozone.pdf is the website the follow interview was posted on.

TCEQ Chairman Bryan Shaw on the TCEQ, the EPA, and Ozone Standards

Transcript of an interview recorded 01-10-2010. Audio available online.

Reporter:

Joining us now with more reaction on this by phone from Texas is Bryan Shaw. He’s Commissioner of the Texas Commission on Environmental Quality. Bryan, thanks for coming on. Mr. Shaw:

Good afternoon, Susan. How are you? Reporter:

I’m good. Thank you. So thanks for coming on. And Governor Perry and you guys actually feel the feds, we hear, are targeting Texas with decisions like these. Mr. Shaw:

Well, it certainly does appear that a lot of the actions out of the federal government these days does seem to lean toward leveling the playing field, as I’ve heard it said. There seems to be a perception that Texas has been able to achieve moderate — has been able to fair better during these tough economic times due to unfair regulations that we have an unlevel playing field and make it easier for businesses to compete. And we certainly are — are trying to point out the fact that we’ve had some pretty impressive environmental gain using our program, our innovative approach. And so we’re actually suggesting that Texas efforts ought to be looked at as a model for other states as opposed to be to being criticized as being too easy on the industry.

Reporter:

Right. And now, does the — does the Governor’s office and the Commission actually question the science behind this, the president following flawed science when he talks about regulation of CO2 and even Cap and Trade? Mr. Shaw:

Yes. We — we certainly — the important — part of the process that we have here at the TCEQ and our responsibility is to ensure that we protect the environment, but do so in a way that’s conducive to also having a — a strong and manageable economy so we can afford to go after further economic — excuse me, further environmental enhancements. And part of the — the process we use to get there is making sure we follow the signs, and we have to make sure that we look at the unintended consequences and we look at making sure that our regulations are

meaningful and will actually achieve the environmental goals we have without creating other problems.

And, yes, there have been some issues with regard to greenhouse gases and global warming. And even on this case, if you look at the data, it’s been our assessment that the EPA’s own data shows that the old standard of 85 parts per billion, so very, very tight standard.

And those data, that EPA evaluated, show that the 85 parts per billion would be protective. So we’re not arguing that it’s too costly and we shouldn’t do it. The argument’s really that the data analysis was flawed and that those data don’t suggest that it warrants reducing those — those levels further.

Reporter:

So when you say the President’s following flawed signs, are you talking about these — this — these EPA data or are you talking about the IPC scientists and their recommendations? Mr. Shaw:

I could go into both. I thought we were going to talk about ozone today. So we could — we could certainly discuss both. There — there are issues there on both of those. With regard to the ozone data, the numbers that they used to suggest that their health effects for those levels of ozone in the 60 to 70 parts per billion range are largely due to correlations, not causation. That is, that they’ve seen correlation between those — those ozone levels. But those are based on monitors that were not individual exposures. So they did a poor job of measuring individual exposure. And then the health impacts, the morbidity and mortality used in the epidemiological studies were based on general data that was received from hospitals without any background or — or evaluation of exposures to other pollutants or in their home environment. And so it leads us to a — a situation.

One of my favorite analogies is — Susan, on this — is if you look at what happens in New York in the summertime when you have increases in ice cream sales and increases in — in violent crime, one could assume that ice cream causes violent crime. Or if you look at it in more detail, you realize that temperature’s increase causes the increased sales of ice cream, but also leads to increase of violent crime. WTF?

We have a similar process here where we have during the — the summer months we have some increases in various pollutants, including ozone. And we have also other activity related issues that come into play. And the mere

fact that you see a correlation between elevated ozone at a monitor and health effects at the hospitals doesn’t necessarily mean that you’re — you’re getting a — you’re getting a correlation that is meaningful. WTF?

We can get those associations that don’t have a causal effect associated with those. And as we’ve dug into and looked at both the epidemiological studies as well as some of the clinical studies, it appears that there are other pollutants that could likely be the cause of those elevated hospitalizations as opposed to ozone.

And, in fact to that point, in Texas, from the years 1999 to 2001, we actually saw, with regard to hospitalizations of (Indiscernible) or asthma, that in the winter months when our ozone is lowest, we actually had an increased level of hospitalizations compared to what we had in the summertime during our ozone season suggesting that there are indeed other parameters besides just ozone that are impacting the asthma in our children.

And so we — our — our problem or my — my certainly interest is not in trying to avoid solving environmental issues, it’s a matter of making certain that we’re careful in doing our homework to ensure that our regulations are meaningful and actually solve those environmental issues that we’re — we’re needing to be attacking to —

Reporter:

Right. Mr. Shaw:

(Indiscernible). Reporter:

So sounds like maybe you should write the Texas version, the next version of freakonomics. You also say that this decision has no regard to the freedoms that Americans are accustomed to. What do you mean by that? Mr. Shaw:

One of the things that this — these new levels are low enough that it really changes the game plan with regard to trying to develop regulations to bring these areas into compliance. We — we’ve looked at some of our areas where historically we’ve had ozone challenges in our Dallas–Fort Worth area, for example, in Houston area. And these are similar to some of the areas out in California where you have a lot of ozone being produced because of the climate that you have there and a lot of natural sources that are there. Give you an example, in Houston, over the last ten years we’ve reduced NOX, N-O-X, emissions by 70 percent in our efforts to get our standard — our levels that we’re measuring into compliance with the 85 parts per billion

standard. And this year, actually ten years ahead of schedule, we were monitoring below the 85 parts per billion standard.

But that required that we spent all those efforts to get those industry to get those reductions and to make those efforts, the State of Texas also spent a billion dollars statewide trying to regulate or trying to actually incentivize replacement of mobile sources that were prohibited to — to regulate because they’re regulated by the federal government.

So those issues — a lot of those industrial areas, industrial sources, we’ve already gotten the — the reductions that we can get without driving those businesses out of state and/or overseas. These new levels, now we’re looking at, one of the ongoing challenges is for Houston again, for example, 60 percent of the ozone forming emissions in that area are due to mobile sources that we aren’t able to — to regulate again.

And so if we look at Houston, we still have industrial sources we’re going to try to find ways to get additional reductions. They’re going to be very costly and/or impossible to attain. But this new standard’s going to apply even to a lot of the rural areas where there’s even less industry, and it’s only the mobile sources that we have to deal with. And so we’re going to have to look at perhaps doing away with drive-ins, drive-in lines at — at restaurants, looking at times that you can mow your lawn so you don’t mow your lawn during the middle of the day when the high ozone-forming potential are there.

So we may have to really look at interfering with a lot of the personal things that we as Americans and — and Texans take for granted that we can go and do the things on a time that fits our family’s schedule.

Reporter:

That drive-through — Mr. Shaw:

So we’re going to see a lot more intrusive regulations coming out of the effort to try to meet these increasingly low standards. And again, the key component of that is we really believe that these are providing only an illusion of protectiveness as opposed to actually resulting in real health benefits. Reporter:

Well, the drive-through issue certainly looks like it’s going to be a hot-button one for — for the average consumer. Now, the Governor says, you’ve been saying, we’ve worked hard and we’ve invested more than a billion dollars to try to reach compliance on the original target, and he said without sacrificing jobs or economic momentum. Now, some are saying, so 4Transcription of Video-Clip of News Interview of TCEQ Chairman Shaw Jan. 10, 2010

he’s making this case that, you know, these tighter restrictions, pollution can be stopped without economic damage.

Mr. Shaw:

Well, I think that part of the real challenge you’re looking at there is — is there’s no low-hanging fruit left. We’re — we’re at — and with some of these levels, at what I refer to as background, actually below background levels, and I think we’re approaching natural levels. That is, we’re looking at, in some of these areas, Houston being a prime example, but others, we’re looking at levels that are not far from what you would have if you take out man’s contributions completely. We have biogenic, or natural, sources, especially in Houston and in some of the other areas, where those natural sources are leading to ozone that some estimates may be in the high 50s to 60 parts per billion range. And again, they’re considering setting the standard between 60 and 70 parts per billion. And so we — we’ve been able to make impressive gains. And I’ll admit that I’m one of those that was surprised that we were able to — to get to those results in a way that didn’t drive industry completely out of our — of our state.

But achieving 70 percent reduction in NOX in the Houston area over the last ten years really should illustrate that th-there are not any easy answers left. We’re certainly going to continue to search for those. But I’m concerned that the easiest answer that’s available now is for those jobs and the economic benefit of those to be moved, I would say out of state, but because these are applied nationwide, I’m concerned that many of these are actually going to be moved overseas.

Reporter:

All right. So — well, what are the prospects here for — for the Governor and the State of Texas to actually bring this into the court against the federal government? Mr. Shaw:

Well, at this point here, from the perspective of the TCEQ, we have a 60-day opportunity for comments. And we’re certainly going to take advantage of that to submit comments to hopefully bring some commonsense view into that and — and encourage the EPA to look at the — the science and their analysis of the science and their own data to evaluate indeed that it doesn’t appear to be a health benefit associated with this reduced standard. We’ll let the — the lawyers and politicians decide about making the lawsuits. But it does seem like it’s going to be a very burdensome prospect for the

state and for the nation, again, with no measurable or — or achievable benefit to the environment or to the health of the — of the citizens of this nation.

Reporter:

All right. Bryan Shaw, Commissioner of the Texas Commission on Environmental Quality. Thank you, so much, for lending your insight tonight. We hope we can follow up with you again in the future on this. Mr. Shaw:

Monday, September 6, 2010

After reviewing the below changes regarding TCEQ permit by rule program it seems like a step in the right direction but further changes should be required.

Some of the changes to the new rule include defining "Receptor" to include hospitals, out-patient care facilities, day-care facilities, early childhood centers, retirement homes and retirment communities. The new TCEQ rule regards receptors as residences and dwellings by definition.

The fifty-foot setback for the Oil and Gas sites from a receptor is not acceptable. The new set-backs should be changed to a minimum of 250 to 500 ft and the measurement needs to be from the receptor located on the outermost area of the Oil and Gas site and not the center.

Oil and Gas sites should be defined as the area in which all pieces of subject equipment are located. The new rule would allow "picking the center of the equipment and drawing a line 1/4 of a mile outward. Drawing a line around the outermost equipment to define the Oil and gas site. This would "prevent creative spacing of equipment as a method of avoiding the new regulatory regime".

We would like the new permitting process not allow old Oil and Gas sites to be "grandfathered" in the new permit by rule program. This is an important issue especially when you look at some of the newer sites. It seems gas production companies have seen this change coming and are creating larger vacant areas on the new sites for future expansion.

Comments are due by October 1, 2010 and can be submitted electronically to http://www5.tceq.state.tx.us/rules/ecomments Please go to this website and follow the link to post your comments and concerns regarding the new changes proposed by the TCEQ. YOU CAN REST ASSURED OIL AND GAS ARE EXPRESSING THEIR COMMENTS AND CONCERNS. BE PROACTIVE AND BE INVOLVED THIS AFFECTS US ALL.

July 29, 2010: Air Quality Standard Permit and Permit by Rule for Oil and Gas Production Facilities

The TCEQ will conduct a public hearing on a new standard permit and permit by rule for oil and gas production facilities.

On September 14, 2010 the TCEQ will conduct a public hearing to receive comments on a proposed standard permit for oil and gas production facilities, the repeal of Title 30, Texas Administrative Code Section 116.620, Installation and/or Modification of Oil and Gas Facilities, and the concurrent modification of the Chapter 106 permit by rule, Section 106.352, Oil and Gas Production Facilities. Details of the standard permit and permit by rule and the repeal of Section 116.620.

The hearing will be held at 10:00 a.m. in Bldg. E, Room 201S at the TCEQ central office located at 12100 Park 35 Circle, Austin. This is a public meeting, and no pre-registration is required.

TCEQ seeks to accomplish the following through this standard permit development and rulemaking:

Update administrative and technical requirementsInclude practically enforceable monitoring, sampling, and recordkeeping requirementsAddress and authorize planned maintenance, startup, and shutdown (MSS) activitiesAllow the commission to more effectively focus resources on facilities that significantly contribute air contaminants to the atmosphereMake appropriate changes to registration and notification requirementsEnsure that air emissions from specific facilities are protectiveThe hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Michael Parrish, Office of Legal Services at (512) 239-2548. Requests should be made as far in advance as possible.

Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2010-018-106-PR. The comment period closes September 17, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html.

The commission is seeking comments from stakeholders on the following issues:

All common facilities at oil and gas sites traditionally using this permit by rule and standard permit so a comprehensive review can be assuredUse of various truck types and liquid loading operations at OGS, particularly information on the various operations and technical specification of vacuum trucksAppropriate control reductions for the proposed PBR fugitive monitoring programProposed timeframe to paint existing, unchanged tanks under the standard permitProposed record parameters may already be compiled and kept in various formats for other regulatory agenciesUsage rates, chemical composition, and potential emissions of treatment chemicals used. This would include methanol injection, amines, and any others.Potential planned MSS emissions associated with molecular sievesThe use of iron sponge units and associated iron sulfide emissionsInorganic or organic treatment chemicals for cooling towers and when cooling towers are used at OGSThe commission proposes to not specify control requirements for planned MSS tanks and vessel degassing operations. Further information on appropriate controls based on estimated emissions and operations for degassing is needed specific to the oil and gas industry is needed. Planned MSS degassing operations will be addressed in separate rule making.Qualitative, quantitative, and/or updated information about any planned MSS activitiesAdditional information on quantification for formaldehyde from enginesOn April 8, 2010, TCEQ conducted a stakeholder meeting on a draft rule and standard permit for oil and gas facilities. Here is a summary of the most common comments on the draft proposals. The basis of the modeling analysis used for the proposed PBR and standard permit are modeling memo 1 and modeling memo 2, modeling data zip file 1 (og_sp_modeling_eng_fug.zip) and modeling data zip file 2 (og_sp_modeling_trans_fac3217.zip), along with the specific air contaminant analysis (.xls file) based on the commission’s modeling, and actual registrations (.xls file) used to confirm reasonable expectations of typical PBR and standard permitted facilities. To further assist understanding of the relevant limits proposed, staff has drafted a table. The commission also has provided the following hypothetical examples based on operations at a small oil and gas site (OGS) and a moderately complex oil and gas (OGS), to evaluate a site's estimated emissions against allowable emissions rates for the TCEQ Air Permits Division (APD) proposed OGS permit by rule (PBR) or standard permit authorization. In addition, the commission is considering the following standardized protocols for optional demonstrations of acceptable impacts. --------------------------------------------------------------------------------

Questions? We Can HelpFor further information, please contact Anne Inman at 512-239-1276 or by e-mail at ainman@tceq.state.tx.us.